For the Last Two Kuwaiti Prisoners in Guantánamo, US Relies on Unreliable Witnesses and Experts Find Evidence Unconvincing

3.4.12

171 men are still held in the “war on terror” prison at Guantánamo Bay, even though an interagency task force established by President Obama concluded over two years ago that 89 of them should be released. However, it is now 15 months since the last prisoner left Guantánamo alive, and as the long struggle to resume the release of prisoners from the prison continues, attention has focused on a number of specific cases: on Shaker Aamer, the last British resident in Guantánamo (please sign the UK petition and/or the international petition); on five Taliban leaders and the negotiations to release them as part of the Afghan peace process (or part of a prisoner swap); on Omar Khadr, the Canadian former child prisoner who was supposed to be released last November according to a plea deal he agreed the year before; and on the last two Kuwaitis, Fayiz al-Kandari and Fawzi al-Odah.

I have written extensively about Fayiz and Fawzi at various times in the last five years, and in February was delighted to be invited to Kuwait to step up the campaign to secure their release, which I wrote about here and here. I also posted videos of the Kuwaiti TV show that I took part in with Tom Wilner, my colleague in the new “Close Guantánamo” campaign and the US civilian lawyer for Fayiz and Fawzi. I was also there with Lt. Col. Barry Wingard, the military defense attorney for Fayiz, and I met Adel AbdulHadi and Sanabil Jafar of the Al-Oula Law Firm, which represents Fayiz in Kuwait, and Khalid al-Odah, the father of Fawzi al-Odah, and the head of the long-established Kuwaiti Freedom Project.

I was also delighted to meet Jenifer Fenton, a journalist who has become fascinated by the Kuwaitis’ story in the last year or so, and has been undertaking the kind of research and investigations that, in general, have been sorely lacking in the mainstream media. Last week, I cross-posted the first of two articles that she wrote following our visit, based on interviews with former prisoners, and published on Al-Jazeera’s website, and I’m now cross-posting the second article, analyzing the weakness of the supposed evidence against Fayiz and Fawzi.

This is something very close to my heart, as I have been exposing the weaknesses in the supposed evidence against the prisoners ever since I began researching Guantánamo — and the stories of the men held there — six years ago, and, since April last year, when WikiLeaks released the classified military files (on which I worked as a media partner), even more evidence has become available to demonstrate that the majority of the information compiled against the prisoners in Guantánamo consists of unreliable statements made by the prisoners themselves, or by their fellow prisoners, either in Guantánamo or in “black sites” run by the CIA, and in circumstances in which torture and other forms of coercion were rife, or by other Guantánamo prisoners who, generally in exchange for improved living conditions, became informants, providing information that, although superficially plausible, was often flagged up as profoundly dubious by the US authorities’ own analysts.

Jen’s article was originally published (in English) in Kuwait Times, although I believe it is so important that it should have been front-page news in the US mainstream media, and I’m very pleased to be making it available to a new audience. Further research, which I am currently undertaking, will follow soon.

Two Kuwaitis to be held in Guantánamo Bay forever — Is there enough proof for indefinite detention?
By Jenifer Fenton, Kuwait Times, March 25, 2012

KUWAIT: The Kuwaiti Parliament has condemned the continued detention of the last two Kuwaiti prisoners in Guantánamo Bay, Cuba. The Kuwaiti Parliament has further requested that a delegation be allowed to visit Fayiz al-Kandari and Fawzi al-Odah at the American prison. The Parliament is “deeply disturbed that for over 10 years … they are yet to be given a fair trial,” the statement said. They “have endured torture, hardship, deprivation and all forms of dehumanization and still the US Government continues to ignore their fundamental rights to fair trial, justice and liberty.” The prisoners’ families have said the same things.

“Why are they still holding my son?” Khalid al-Odah asked late one evening as he sat in his son’s study. After 10 years he does not have his answer. His eldest son, Fawzi al-Odah, is a prisoner in Guantánamo Bay detention center. He has never been charged with a crime. When the son is allowed to speak to his family he is always asking them to tell him funny stories. “I am really astonished how he kept his brain intact in his body and has this high morale. It is really amazing,” his father said. “Fawzi said I want to get back home and get married as soon as I get back.”

Presently 171 people remain in Guantánamo Bay prison. Eighty-nine have been cleared for release, but the US administration has decided it will detain dozens of men forever. Two of these men are Fawzi al-Odah and Fayiz al-Kandari, both Kuwaitis who said they went to Afghanistan for charitable reasons. The US has said they are members of al-Qaeda. Neither man was captured on a battlefield and both said they were sold to the Americans for bounty money.

Al-Odah and al-Kandari have lost their habeas corpus petitions challenging their detention. Since 2001, they have not had a chance to challenge the hearsay evidence against them. They are not high-value detainees; the handful of experts I have contacted in the terror circuit have not heard of them; and according to their lawyers, they are not alleged to have engaged in hostile acts against the US. “We will never know the rationale for putting them in the indefinite detention category,” said David Cynamon, a lawyer who represents the Kuwaiti detainees.

Based on al-Odah’s and al-Kandari’s most recent classified Joint Task Force Guantánamo (JTF-GTMO) reports made available via WikiLeaks, many of the other prisoners’ evidence against them is unreliable. Other allegations against the two men are often vague and unsubstantiated.

Abdul Hakim Bukhari (or Bukhary), who said he had previously been tortured by Al-Qaeda and held in a Taliban prison on suspicion of espionage, is alleged to have said al-Odah “swore bayat [allegiance] to UBL [Osama bin Laden]” and “knows all about the [al-Qaeda] cells in the US and the UK.” Bukhari noted detainee was similar to a “mufti [one who interprets Islamic religious law] and heard detainee was the last person to speak to Osama bin Laden in Tora Bora, via radio communications.”

Bukhari, a former Guantánamo prisoner from Saudi Arabia, is said to have made at least six serious allegations against al-Odah including that al-Odah “was among a group of individuals who were trained to commit suicide attacks similar to that of Sept 11, 2001.” Bukhari has said that “he provided information in a deliberately misleading manner in order to receive incentives from his debriefers.”

When contacted about al-Odah’s and al-Kandari’s cases a US Defense Department Press Operations spokesperson, Cmdr. Leslie Hull-Ryde said the DoD does not “discuss the provenance of individual detainees unless they are currently before a commission.” Cmdr. Hull-Ryde added further, “We strongly condemn any continued, illegal disclosure of classified US Government information, and we do not comment on the authenticity of the documents released by WikiLeaks.”

Others that have made allegations against al-Odah and/or al-Kandari include Mamdouh Habib, who said he was rendered to Egypt where he was tortured for six months. He has said all of the information he gave was under duress. Habib was said to have photo-identified al-Odah as an individual seen at an al-Qaeda guesthouse in Kabul in September 2001.

Perhaps one of the most unreliable prisoners at Guantánamo Bay was Yasim Basardah, a Yemeni whose statements against prisoners have been widely called into question by the US military, US courts and others.

Basardah made at least four allegations against al-Odah and eight against al-Kandari. Basardah “identified [al-Odah] as a member of the Islamic committee in Tora Bora … Other members of the committee were Fayiz al-Kandari.” Basardah further claimed that al-Kandari was one of bin Laden’s “closest confidants, as well as an advisor and assistant.”

Another Kuwaiti formerly held in Guantánamo, Adel al-Zamel, allegedly made several statements against both al-Odah and al-Kandari, according to the JTF-GTMO reports. Al-Zamel said recently, for this article, that he did not know al-Odah or al-Kandari prior to his time in Guantánamo so it would not be possible to know things about them. Al-Zamel does not remember making allegations against the two Kuwaitis and he thinks the Americans might have made them up because the Americans were trying to drive a wedge between the Kuwaiti prisoners. But al-Zamel said if he did say anything against al-Odah or al-Kandari it was because he was under duress.

The list of unreliable allegations against the two Kuwaitis does not stop there. Abdul Rahim al-Janko [aka al-Ginco, a Syrian released in 2009 after a US judge granted his habeas corpus petition] had been tortured and imprisoned by al-Qaeda and the Taliban because they thought he was a spy. Another, Mohamedou Salahi’s allegations of abuse were confirmed and well documented by a 2008 US Senate Armed Service Committee report. Both were alleged to have made statements against al-Kandari.

Janko allegedly said al-Kandari “claimed to be in the same cave as bin Laden in Tora Bora when the US bombing campaign began.” Salahi was reported to have said al-Kandari “held speeches in al-Qaeda training camps and at the front lines.

The combined testimony of those prisoners mentioned above makes up close to three dozen allegations against al-Odah and al-Kandari in their JTF-GTMO reports. Additionally, in the JTF-GTMO reports on the two Kuwaitis, there is no discrimination of the different pieces of evidence. The reports do not note if some claims are more truthful than others.

“One thing I think is pretty strange with the intel assessment process is the absence of grading the veracity of other inmates’ stories,” said Magnus Ranstorp, from the Center for Asymmetric Threat Studies at Swedish National Defence College. “Most of the indictment/intel assessments are derived from that and all is baked together as equally credible,” said Ranstorp, who has interviewed hundreds of terrorists and members of Islamic militant movements. The US “cannot claim that everything is actually equally credible.”

Looking at al-Odah’s JTF-GTMO report, Ranstorp concluded that it is unreasonable to assume al-Odah did everything the US has said he did. “It appears al-Odah traveled and was recruited in August/September 2001. He seems also to have had a very marginal role given the brevity of his period. Yet intel brief gives him a trumped up position in al-Qaeda as recruiter and courier; an associate of a 9/11 hijacker,” Magnus said.

“The list goes on about hearsay what other prisoners claim and much of this seems poorly sourced … He spent three months in the Afghanistan-Pakistan area and given he arrived just before 9/11 — and associated turmoil — I doubt there was very much training as everyone was running to ground,” Ranstorp added. “The analyst notes are poorly sourced and huge inferences are drawn as to matching information that ‘sounds’ like real suspects.”

For this article, the US Defense Department was asked if there is additional classified information about the two Kuwaitis, if all the evidence against the men is treated as equally credible, and if US authorities have made any attempts to verify claims against the prisoners. But because the information in this report was made available via WikiLeaks, the DoD declined to comment.

There are further unsubstantiated claims in the two Kuwaitis’ JTF-GTMO reports. In al-Odah’s case, the US alleged that he was in Bosnia when he was 17 years old and “detainee has an extensive history as a jihadist as is evident in his presence with other mujahideen in Bosnia as a teenager.” An analyst states, “this indicates detainee has an extensive history with international militant jihad, and based on his age at the time, probable support and encouragement from family members for his participation.”

Khalid al-Odah, Fawzi al-Odah’s father and a retired Kuwaiti Air Force pilot who fought with the Americans when Iraq invaded Kuwait in the 1990s, said the allegation is categorically false.

It is further stated in the US reports that al-Odah was a member of Abu Qatada’s cell in London, but “no info is specified as to his travel there — this could be verified by UK entry and departure records,” Ranstorp noted. The US states he is a mufti, “doubtful he has the religious authority given his age,” Ranstorp noted. (Al-Odah was 24 when he was sent to Guantánamo.)

Ahmed Rashid, an expert on Afghanistan and the Pakistan and author of Taliban, was asked if based on the publicly available information he believed al-Kandari could be as alleged an “advisor” or a “consultant” to bin Laden. “Not at all. Not at all, I would say,” Rashid said. “You know they [al-Qaeda] were running many camps in Afghanistan. He [al-Kandari] could have been part of one camp and Osama may have visited that camp at some stage … To be down in Kandahar in the main camp there near the airport, I mean no, these are very very trusted people.” Rashid added further that the word “consultant” is very western terminology that would not be used by al-Qaeda.

The allegations against al-Odah and al-Kandari include affiliations with alleged al-Qaeda or terrorist operatives — or note that the two Kuwaitis were at times in al- Qaeda areas. But according to Rashid not much can be inferred from that. Al-Qaeda “had all sorts of people … with them. Kashmiris, Central Asians, Pakistanis, Afghanis, all sorts of people that were not necessarily al-Qaeda,” Rashid said. “They were either guards or trainers or people who were training but were not necessarily al-Qaeda. You didn’t have to join al-Qaeda to get training with al-Qaeda.”

After the attacks of 9/11 and before he was imprisoned by the Americans, al-Odah called his father Khalid al-Odah. “Yes, once he talked to me. Very short telephone call,” the father said. “I asked him to come back. He said I am coming back, but there is a lot of refugees, I want to help them,” the father said. “And that is it. He said within a week or two I will be back. And I never heard of him afterward.”

Months later Khaled al-Odah found out his son was in Guantánamo, where Fawzi al-Odah, now 34, still remains.

11 Responses

Good to hear from you, my friends. I’m on holiday with my family, away from London, and I’ve been relaxing for the last few days as I came down with a serious attack of eczema, obviously as a result of working too hard and getting too stressed out. I’m mostly trying to relax, although I’ll be publishing some other exclusive new material soon!

Thanks, George. I’m doing my best to relax. It’s raining in the West Country today, but we (my family and the friends we’re staying with) are visiting Gloucester today, which I don’t think I’ve visited since I was a teenager.

That article says that Colonel Lawrence Morris had (1) been meeting with their clients without advising them; (2) had advised their clients not to trust their civilian attorneys because they were jewish.

Someone challenged me for trying to use this 2008 MSNBC reference, because I couldn’t say how the appeal court had ruled.

Re-reading the MSNBC article it seems the appeal court was the newly assembled “Court of Military Commission Review”. Just as the Military Commissions weren’t real courts, neither was the Court of Military Commission Review.

Do you know whether any of the documents generated by this “court” are online?

I found it. The USCMCR ruled just a day or two after Morris filed his response. Morris didn’t deny contacting the suspects without advising their attorneys. Rather he disputed whether the USCMCR had jurisdiciton. He stated that only the “Convening Authority” — Susan Crawford at this time, had the authority to call upon the USCMCR. He argued that because charges hadn’t been filed yet the captive’s attorneys had no say in his actions. And the USCMCR meekly agreed.